Notice & Comment

D. C. Circuit Review – Reviewed: Trafficking in Collegiality 

The D. C. Circuit handed down only one opinion this past week. On Tuesday, the court issued its opinion in Samark Lopez Bello v. Andrea Gacki, No. 23-5036, written by Judge Henderson and joined by Chief Judge Srinivasan and Senior Judge Randolph. The court affirmed a decision of the Office of Foreign Assets Control (OFAC), a part of the U.S. Department of the Treasury, designating Samark Lopez Bello for materially assisting in international narcotics trafficking. Such trafficker designation under the Foreign Narcotics Kingpin Designation Act blocks all of the designee’s assets in the U.S. The Court rejected Lopez Bello’s claims that OFAC could not designate him at the same time it designated the trafficker he assisted, and that post-deprivation notice was insufficient. Barring simultaneous designation and requiring pre-designation notice, the court explained, would undermine the purpose of the Act by allowing traffickers to drain their assets.

Although it isn’t directly related to the work of the DC Circuit, I can’t resist giving a hearty thanks to Washington Post reporter Ann Marimow who covered the DC Circuit before her beat was changed recently to the Supreme Court. Ann’s article on the recent public conversations between Justices Sotomayor and Barrett about collegiality on the Supreme Court is an antidote to the parade of commentary about a divided judiciary acting on political impulse. Ann E. Marimow, The Supreme Court seems bitterly divided. Two justices say otherwise, Wash. Post (Mar. 15, 2024).

I had the good fortune of moderating the conversation between Justices Sotomayor and Barrett at the National Governors Association and was cheered that their plea for reasoned and respectful discourse was greeted by a standing ovation from an audience that included 41 of the nation’s 50 governors. 

I’m convinced that Justice Barrett’s concurrence in the Colorado Ballot Access case, Trump v. Anderson (No. 23-719), was directed not only to her colleagues but also to the American citizenry:

“In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”

A welcome message during a time of toxic polarization. Maybe the judiciary’s model of reasoned discourse and respectful disagreement can show us the way forward.  

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